Nicolle Wallace speaks! Stop the presses, a legal scholar pontificates! Oh, er, I meant an MSNBC host blathers. At least that’s what she is now (isn’t it interesting how a “conservative” fits in so nicely over there?). Nicolle Wallace first came onto the public radar as the fellow female who helped to undermine Sarah Palin when she was John McCain’s running mate. According to Wikipedia, she looks pretty good on paper, but looks can be deceiving:

[Nicole Wallace] is an American journalist, author, anchor of Deadline: White House, and chief political analyst for MSNBC and NBC News. She served as the White House Communications Director during the presidency of George W. Bush and in his 2004 re-election campaign. In 2008, Wallace also served as a senior advisor for the McCain–Palin campaign. She was a co-host of the long-running talk show The View and is a frequent contributor and guest host on MSNBC programs The 11th Hour with Brian Williams and Morning Joe, as well as on NBC’s Today Show.

She has a BA in mass communications from UC Berkeley (how fitting!), and an MA in journalism from Northwestern. Notice that she has no legal training. Apparently she gets all her legal know-how from fellow “conservative” Bret Stephens, who recently called for repeal of the Second Amendment. He was lovingly filleted by our lovely Victory Girl Marta here.

So what was Wallace’s latest offense against the Constitution? She said that the Second Amendment was intended to be used for defense against “foreign militias.” Boy does she have her legalese confused. Of Bret Stephens highly educated opinion, she said:

“He said the intellectually honest way to have this debate is to say that this isn’t what was intended, that we’re an armed population,” Wallace said…. “This was a right to bear arms against foreign militias.”

Click here to watch for yourself.

Nicolle, the intellectually honest way to have this debate is actually to start with some honesty, honesty about how little you know about the Second Amendment. I will help you on the education part, but you’ll be responsible for the ethics, OK? Let’s start with the law.

Please read the following in preparation for your lesson: the Second Amendment, the Supreme Court cases of District of Columbia v. Heller, Caetano v. Massachusetts, and Federalist Paper No. 29 authored by Alexander Hamilton, December 29, 1787. 

The Second Amendment provides:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

At the time of the writing of the Bill of Rights, a significant concern was the maintenance of a standing army by the central government. A standing army can easily be abused by the government, so many framers were against it – as there tended to be some hypersensitivity to a government that was too powerful. The compromise then, was the idea that if a standing army was not to be had, there still needed to be a way for the country to be able to defend itself. Therefore, citizens would be called to the defense as needed, and they would come with their own weapons.

The Supreme Court has examined the Second Amendment, and in District of Columbia v. Heller, has determined that:

• The right to bear arms is an individual right, and is not limited to a subset of people (i.e., militia).
• The use of “militia” in the wording of the Second Amendment serves as a purpose for the right, but not a limitation on the right.
• “Arms” applies to all manner of weapons, and is not limited to arms that were in existence at the time of writing.

The right to keep and bear arms is an individual right – “to the people” – and not a right protected for a subset of the people – i.e., the militia. This phrasing is used other times in the Constitution in the First, Fourth, Ninth, and Tenth Amendments and every time it means a right protected for the individual or a power reserved to the people. These uses of “people” in the Constitution refer to individuals or to the group as a whole – a national community. Therefore limiting the use of arms to a subset of “militia” conflicts with the way “the people” has been used in every other part of the Constitution or the Bill of Rights. The holder of the right is “the people.”

“To keep and bear arms” also indicates a use outside of the militia. This phrase does not connect the possession of arms solely to their use in an organized militia. Many state constitutions at the time supported this interpretation as they explicitly stated that citizens may “bear arms in defense of themselves and the state.” This indicates that bearing arms is not limited to the carrying of arms in a militia.

The term “arms” was defined at the time as “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” The term did not apply to any specific weapon or have as a limitation only those specifically designed for military use. The term “arms” was a broad term and carried with it no limitations on design or technology.

Since we need to interpret the Constitution consistently from Amendment to Amendment, we cannot apply a technological limitation to one part but to none of the other parts. For instance, if we were to limit the protection of rights to technology available at the time of writing, then First Amendment protections could not be extended to electronic communications on the internet (i.e., only newspapers), and Fourth Amendment protections could not be extended to cars or iPhones (i.e., only wood cabins). Therefore arbitrarily applying a technological limitation only on the Second Amendment for weapons in use at the time is nonsensical. The Supreme Court said that that argument “borders on the frivolous” and yet it shows up again and again in social media presented as a legitimate limitation.

In the recent case of Caetano v. Massachusetts, this idea was examined where a victim of domestic abuse obtained a stun gun to protect herself from her estranged husband. She was convicted for possessing an electronic weapon banned under state law. Had she been carrying a regular handgun, she would not have violated the law. She appealed her conviction to the Supreme Court and won. The Court held that the Second Amendment could not be restricted to those arms commonly in use at the time of writing. Regulation of weapons by states is allowed to a degree, but prohibition in this manner was unconstitutional. It should be obvious that in this case a woman wielding a stun gun, something she was comfortable carrying, was the best weapon for her. It would be ridiculous to interpret the Second Amendment to force her to carry a more lethal weapon that was consistent with historical knowledge, but condemn her for carrying a weapon unknown to the framers at the time of writing the Second Amendment.

The right to keep and bear arms was and is seen as a protection of a pre-existing right. In other words, the Constitution does not provide the right – it protects a right already in existence. The right was actually recognized in English common law as well. The right boils down to the universally recognized natural law right of self-defense or self-preservation. We all have the right to defend ourselves, though there can be limitations through circumstances or amount of force that we can use. The same idea of pre-existing rights is used when we talk about the First and Fourth Amendments – we already have a natural law right to freedom of expression and freedom from unreasonable searches – the Constitution only codifies these rights into positive law as protections against government infringement. The Bill of Rights constrains the government. The government did not create these rights and as such it cannot take them away.

The Second Amendment is not about target shooting or hunting or only home defense, though those are positive byproducts of keeping and bearing arms. As we know too well there are also negative byproducts of possessing arms when they are misused. But the arguments about whether we need more lethal weapons or not is really beside the point in relationship to the purpose of the Second Amendment. If the Second Amendment is about being able to provide a militia capable of defending the state, then the answer to that question would be yes. Private citizens would need to have equipment on par with any invading force or tyrannical leader’s forces. And if it is about protecting ourselves, then private citizens should have equal or greater capability to do this when faced with bad guys with advanced technology. Despite this, the right is not unlimited. The Supreme Court has additional tests for what weapons private citizens can possess (generally stated, nothing that is “dangerous and unusual” and guns cannot be proclaimed per se “dangerous”), but proving the “need” for a certain weapon or attribute is not a requirement to showing constitutional protection.

The framers were visionaries. They drafted a document that has lasted nearly 240 years. They certainly would have understood about technological advancements as they crafted the Constitution based on historical brutalities. They knew that disarming a citizenry was the way tyrants gained control and through the codification of the Second Amendment they established a balance between the federal government and the states – there would be no standing army, but the country would not be left defenseless in the case it needed defending.

The Second Amendment was not brought forth through a debate about whether citizens would be allowed to keep and bear arms. It was established to codify the necessity of a militia (in lieu of a standing army) and it would be populated through citizens who were already armed. The right to bear arms – which is essentially the right of self-preservation – was never something that was under debate.

So there you have it Nicolle, and Bret, if you’re listening. This is the law and a credible interpretation of what “they” were thinking back then. I know its hard to fathom that any community would consider gun ownership as common place as having wifi in the house, but they did. So much so, that putting a protection to bear arms into the Bill of Rights wasn’t even considered until they needed to deal with the rejection of a standing army. Now we do have a standing army, and so the right to bear arms is even more relevant, not less. A standing army will follow the orders of the government, and if those orders happen to be to attack the populace, then failing the good sense of the military commanders to ignore those orders, an armed citizenry is a prudent back up plan.

The bottom line is self-defense – an unalterable, pre-existing, universally recognized right. Does Nicolle think that we should be allowed to defense ourselves, but only up to a point? Or should we trust the government to take on that obligation entirely? I think we should be able to defend ourselves up to any point at which we are threatened and I am the one ultimately responsible for my own well-being. I guess I could sue the government if it falls down in its duty, but by then I’ll be dead. Let’s be honest, I’m someone you want on your team Nicolle, but you can go huddle with Bret Stephens and your Leftie elitist friends all safe in your gated communities and ivory towers. Until you’re not.